As I understand, EULAs and TOS are a type of adhesionary contracts. The Legal Information Institute at Cornell University defines an adhesionary contract as “a standard form contract drafted by one party (usually a business with stronger bargaining power) and signed by the weaker party (usually a consumer in need of goods or services), who must adhere to the contract and therefore does not have the power to negotiate or modify the terms of the contract.” This sounds just like EULAs and TOSs. They are written by one party, the video game developer, and signed by the weaker party, the gamer, who must adhere to the contract if they want to play the game and has no option of modifying the terms.
Adhesionary contracts are also used outside of video games. If you’ve ever bought car insurance, travel insurance, or any other type of insurance, you’ve almost certainly signed an adhesionary contract as their us is standard practice in the insurance world. As I’ve learned in Insurance Law, because of the one sided nature of adhesionary contracts, Courts interpret any ambiguity in such contracts against the author (also known as contra proferentem) as it was solely in the authors power to avoid the ambiguity when the contract was drafted.
Therefore, one would think that courts would also interpret EULAs and TOSs against game developers and in favour of gamers, but, if I remember Professor Festinger’s earlier lectures correctly, this is not typically the case. Why do you think this is? Just like between an insurer and an insured, there exists a large power imbalance between game developer and gamer, and yet developers seem to have EULAs and TOSs interpreted in their favour.
Perhaps the disparity is because of what the adhesionary contract provides. For gamers, the adhesionary contract provides pleasure, whereas for the insured, the adhesionary contract provides peace of mind. Therefore, it is possible that the court places greater importance in peace of mind than in pleasure, but should they? After all, when it comes down to it, is peace of mind really that different from pleasure?